Dive Brief:
- A Jewish charter school organization filed suit against the Oklahoma Statewide Charter School Board on Tuesday over the recent rejection of its application to open a religious public school.
- Ben Gamla Jewish Charter School Foundation's application was rejected in light of the state supreme court's ruling in St. Isidore v. Drummond that a Catholic public school — which would have been the nation's first religious public school had it opened as expected — violated the separation of church and state. That decision was affirmed by a deadlocked U.S. Supreme Court last year.
- The lawsuit — the latest of at least three against the board over its approval or rejection of a religious public school — claims the board's decision to reject a religious organization's bid to open a public school violates the First and 14th Amendments.
Dive Insight:
The road to the current legal battle over religious public schools was paved by two earlier Supreme Court rulings — Carson v. Makin in 2022 and Espinoza v. Montana Department of Revenue in 2020.
When taken together, the two cases gave private institutions access to public funding regardless of their religious use or status, leaving the door open for the public funding of religious schools — including charters with religious instruction.
In recent years, the Oklahoma charter board has faced a number of lawsuits over its decisions to approve and reject applications for aspiring public religious schools — both by parties hoping to hinder religious public schools in the St. Isidore case and parties hoping to create religious public schools in the Ben Gamla case.
In the case that had the Supreme Court deadlocked, the Oklahoma Statewide Charter School Board in 2023 approved an application filed by St. Isidore of Seville Catholic Virtual Charter School, which sought to open its virtual doors as the nation's first religious public school in fall 2024. At that time, the board expressed that it was facing lawsuits regardless of its decision, considering both those in favor of and opposed to publicly funded religious schools had voiced their intentions to sue.
Republican state Attorney General Gentner Drummond filed a lawsuit days later challenging the school’s constitutionality. He won in his arguments before the state supreme court that the school would violate state law and the First Amendment’s establishment clause.
The high-profile case made it to the U.S. Supreme Court, which affirmed that decision through a deadlock after the recusal of Republican-appointed Supreme Court Justice Amy Coney Barrett.
However, in that case, the justices did not answer questions about the constitutionality of religious public schools.
As such, education policy experts have since expected the issue to return to the Supreme Court. The Oklahoma Statewide Charter School Board's chair, Brian Shellem, also said in his decision to reject Ben Gamla's application that he hoped it wouldn't be the end of the religious public schools issue.
The board's rejection elicited another lawsuit earlier this month from Drummond, who said that in rejecting the school, the board excluded from the public record additional reasons for its rejection other than the Supreme Court decision. He cited non-religious reasons for the school’s rejection such as discrepancies in enrollment numbers, claiming they were omitted on purpose to set up a pathway for Ben Gamla to sue on religious grounds.
